Divorce Transfer Petition in Supreme Court

DIVORCE TRANSFER PETITION IN SUPREME COURT

Divorce Transfer Petition in Supreme Court

This is how the divorce transfer petition in supreme court for matrimonial cases are being addressed by the Hon’ble Supreme Court. Every second wife is before the Supreme Court seeking For transfer petition in supreme court for the cases from one state to another and perhaps they were lucky enough to get the same as and when the Judges find that the petitioner is the women.

But since the harassment suffered by the husband due to the false cases already pending against them and finally the Hon’ble Supreme Court Refusing to transfer a matrimonial dispute to the wife’s convenience, a Supreme Court Bench comprising of Chief Justice H.L. Dattu and Justice A.K. Sikri, observed, “Estranged wives seeking divorce transfer petition in supreme court, filed by husbands, to their places of residence has become the order of the day. We had become too liberal in acceding to their requests. But the husbands also have a right. Why the husbands should be always made to suffer.”

Hon’ble Supreme Court has stated that these divorce transfer petition be not disposed of in favour of the wife’s without critically assessing the term “doctrine of forum convenience’ which means –‘the best forum’ or a forum where a fair trial can be had’.

Because normally there is a presumption that if a petitioner has filed a case in a court having jurisdiction – it is the best forum. The burden is on the person seeking a transfer to prove to the court that if the proceedings are not transferred then the petitioner would suffer irreparable injustice, on the merits of the case (going unrepresented in the case) and with respect to personal life (loss of job/health/safety issues), would also have to prove that the latter is irreparable in monetary terms and many other factors.

Rather, as a matter of fact, the Husband cannot be always made to suffer and there are judgments passed by the SC wherein he can counter the allegations made by the wife and protect himself from being further harassed. Instances of these could be described as follows:

  1. If the wife claims to have a minor child then grandparents can be asked to look after the child and merely on this ground the petition should not be transferred (Anandita Das v. Sirjit Dey (2006))
  2. If the wife claims a far distance then effort to prevent a transfer the husband can make an offer to bear IInd class AC tickets for the woman to travel and she stay expenses. This is normally considered by the court.
  3. If the wife claims a threat to her life and she cannot commute strong proof is required to be shown and merely by stating fear to her life the court will not be inclined to transfer the same as held by Hon’ble Supreme Court in Priti Sharma v. Manjeet Sharma –  (2005)– the court, in the case of a wife seeking transfer on the grounds of being unemployed and unable commute, categorically held “merely because petitioner is a lady does not mean she cannot travel” and the transfer petition was dismissed.
  4. Men who have kids custody with them can rely on Jaishree Banerjee v. Abhirup Banarjee (1997) 11 SCC 107 to get proceedings transferred in their favour.
  5. Men can take the courts to the merits of the case and show the false case already filed by the wife and the courts are bound to consider the same while deciding the transfer petitions.

Parental Child Kidnapping/Abduction Prevention Laws & Acts India

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What does it mean to have legal custody of a child?

A parent with legal custody can make decisions about the child’s schooling, religious upbringing and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision-making is shared by both parents.

What is Considered Parental Kidnapping? 

A parent who does not have legal custody of a child can be convicted of kidnapping. When a parent takes a child without the other parent’s consent, it is considered parental kidnapping. States do not have a specific law “Parental Kidnapping,” but most states have arranged their general kidnapping laws to provide for the same type of offence

even if a parent took their child without the consent of the custodial parent. Whether or not the taking of a child by a parent is considered parental kidnapping, the court looks at three main factors, including:

  1. The legal status of the offending parent;
  2. If there are any existing court orders regarding custody; and
  3. The intent of the offending parent.

In order to convict you of parental kidnapping, the prosecution must prove the following elements:

  1. You maliciously took, enticed away, kept, withheld, or concealed the child from his or her lawful custodian who may be the other parent;
  2. The child was under the age of 18;
  3. You did not have the right to custody of the child and
  4. You intended to keep or detain his or her lawful custodian.

Natural Guardian

  • Section 6(a) of the Hindu Minority and Guardianship Act, 1956, states that the father is the natural guardian of the child, and after the father, it is the mother who would have rights over the child.
  • Section 6(a)provides, “(1) in case of a minor boy or unmarried minor girl, the natural guardian is the father, and after him, the mother; and (2) the custody of a minor who has not completed the age of five years shall ‘ordinarily’ be with the mother.”

In the case of Gita Hariharan v Reserve Bank of India (1999), the Constitutional validity of this legal provision (Section 6(a)) was challenged, stating that it violated the equality of sexes under Article 14 of the Constitution. The Supreme Court stated that the word ‘after’ does not mean that the mother is disentitled from being the natural guardian of the child during the lifetime of the father; it means that the mother steps in “in the absence of the father”. Absence could mean “temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise”.

The Gita Hariharan judgment does not adequately address the problem that Section 6(a) poses – it enforces the best interests of the child but deems the guardianship of the father as stronger.

  • When is it legal if a parent takes away a child from the other parent?
  • If you are married, and there is no court order of custody, it is legal for the other parent to take your child.
  • Or if you are divorced and the other parent has sole physical custody it is legal for them to take your child.
  • Physical custody is different from legal custody. If you have sole physical custody, the other parent may not take your child away from you.
  • When is it illegal if a  parent takes away the child from the other parent?
  •  
  • If you have sole physical custody, it is not legal for the other parent to take your child from you. Sometimes taking your child from you is a crime, like “parental kidnapping.
  • Physical custody is different from legal custody. If you have sole physical custody, the other parent may not take your child away from you.
  • After parenting time or visitation the other parent must bring your child back or let you pick up your child. The other parent must obey the parenting time order. If they do not bring your child back or let you pick up your child, even if you share legal custody, they violate the custody order. They may be guilty of a crime like “parental kidnapping” or “custodial interference.”

 

‘Since India does not recognise parental child abduction as an offence, it becomes a custody battle in courts here!!

 

But In the absence of proper laws a case of “abduction” by one parent, is treated as a case of a custody battle in India. If a country has signed the treaty, a court in the country where the child had been residing passes an order that a child is returned. The court in the country where the child has been brought to passes a mirror order. “This is not an order of custody. It just means that the child be taken back to the country of habitual residence where both parents may then file for custody,”

 

What is a Writ of Habeas Corpus…?

  • writ of habeas corpus (which literally means to “produce the body”) is a court order to a person or agency holding someone in custody (such as a warden) to deliver the imprisoned individual to the court issuing the order and to show a valid reason for that person’s detention.
  • A habeas corpus petition is usually filed in cases of illegal detention. The court can direct that a person, who is in the illegal custody of another person, be produced before it. Habeas corpus has been used to secure production of persons who have been illegally detained in prison or even in cases where parents in cases of child custody move the court seeking that their daughter who has eloped be trace
  • Illegal Detention –The Bombay high court  division bench of Justice Vijaya Kapse Tahilramani and Justice Anil Menon in one of its cases of Mumbai made the observation while hearing a habeas corpus petition that when  the child is  in the custody of his mother, it cannot be said to be a case of illegal detention,”

 

  • The maintainability of the writ of Habeas corpus 

Recently  In the case Manju  Yadav v. State of UP Allahabad High Court has examined the issue regarding the maintainability of writ of Habeas corpus when an order of competent court/magistrate court is in existence for giving the minor girl in the custody of father after she was recovered during the investigation upon an FIR lodged under Sections 363 and 366 IPC.

Conclusion 

“The writ of Habeas Corpus is a proper remedy on the part of one parent to recover a child from the other parent, either before or after the parents have been legally separated or divorced. Since the welfare of the child is the primary consideration in making an award for the custody of it, such an award may be made in a Habeas Corpus proceeding without reference to where the domicile of the parents may be.”

We also see from the decision of the Supreme Court reported in Manju Tiwari v. Rajendra Tiwari (AIR 1990 SC 1156) that a writ of Habeas Corpus has been issued with respect to the custody of minor children in the US between their parents. So, this is a case where we find that this Court can certainly exercise jurisdiction vested in it under Art.226 of the Constitution of India with respect to the issuance of a writ of Habeas Corpus, which the petitioner seeks for.

Procedures, Grounds & Judgements To Transfer Case In India

The Constitution of India is the fountainhead from which all our laws derive their authority and force. Transfer petitions can be presented at various stages of a trial. They can be presented before the High Court or the Supreme Court. They seek that depending on a just cause or reason, you request the Court to transfer your case to another district or State.

Article 139A of the Constitution states,

Transfer of certain cases:-
1. Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or an application made by the Attorney-General for India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself: Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.

2. The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.

Where a Transfer petition can be filed?

Transfer petition can either be filed at High Court or at supreme court. If the transfer of a case is within a state then High Court of that State the transfer petition can be filed but if it is interstate then at supreme court.

How are Transfer petitions filed?

Transfer Petitions are filed under Section 25 of the Code of Civil Procedure. Section 25 (1) provides:

On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

When the transfer of a case is sought-after from the State of Jammu and Kashmir. Code of Civil Procedure doesn’t apply to the State and thus the provisions of Section 25 of the Code of Civil Procedure additionally wouldn’t apply.

In Dr. Subramaniam Swamy v. Ramakrishna Hegde, the Court held that:
The paramount consideration for transfer of a case under Section 25 of Code of Civil Procedure must be the requirement of justice.

Also, Section 406 of the Code of Criminal Procedure empowers the Supreme Court of India to transfer criminal cases and appeal unfinished in one court to a different court or from a Judicature subordinate to at least one court to a different judicature of equal or superior jurisdiction subordinate to a different court.

In which cases a transfer petition can be filed?
A transfer petition can be sought in any kind of case be it matrimonial or a civil or a criminal case having its main aim to give justice to the seekers.

It was held that the mere convenience of the parties or anyone of them might not be enough for the exercise of power, however, it ought to even be shown that trial within the chosen forum will result in denial of justice. The Court any control that if the ends of justice therefore demand and also the transfer of the case is imperative, there ought to be no hesitation to transfer the case. The proper of the dominus litis to decide on the forum and thought of complainant’s convenience etc. cannot eclipse the necessity of justice. Justice should be done in any respect costs; if necessary by the transfer of the case from” one court to a different as held in the case of Dr. Subramaniam Swamy v. Ramakrishna Hegde.

Grounds on which a Transfer can be sought.
Transfer petitions are mostly filed in matrimonial cases on the plea of wife.

Transfer of the cases can be sought on various grounds in a matrimonial case; they are:
Prejudice in that jurisdiction that husband’s family is very influential and will hamper the fair proceedings.
Threat to life- Again being influential is a good ground for having a threat to life.
Old and ailing parents
Being a single woman without any support-If there is no support from father side then that is the good ground for seeking transfer.
Medical History- Medical proof should be attached in case of medical ailment
No source of income- If wife is not working is a good ground
Simultaneous Jurisdiction

Grounds on which the transfer petition be dismissed
Rather as a matter of fact, the husband cannot always be made to suffer and there are various judgments passed by the Hon’able supreme Court, wherein the husband can counter the allegations made by wife and protect himself from being further harassed.

Defence of these could be as follows:

If the wife claims to have a minor child then grandparents can be asked to look after the child and merely on this ground the petition can’t be transferred (Anandita Das v. Sirjit Dey, 2006)
If the wife claims a far distance then effort to prevent a transfer,the husband can make offer to bear 2nd class AC tickets for the woman to travel and her stay expenses.
If the wife claims a threat to her life and she cannot commute ,strong proof is needed to be shown, and merely by stating a fear to her life, the court will not be inclined to transfer the case, merely because petitioner is a lady does not mean she cannot travel’as stated by the SC in Priti Sharma v. Manjeet in 2005
Men who have kids custody with them can rely on Jaishreee Banarjee vs. Abhirup Banarjee to get proceedings in their favour.
Some cases of where the Transfer Application was being filed
In Avtar Singh and Co. Pvt. Ltd. v. S.S. Enterprises, a petition was filed, under Section 25 CPC for transfer of the suit from the Calcutta High Court to the District Court at Kanpur where a suit was already pending. The Court directed the Calcutta suit to be transferred to Kanpur taking under consideration of proven fact that Kanpur suit was filed earlier in purpose of time and that the suit was filed in Calcutta was within the nature of a cross-suit.

In Kiran Ramanlal Jani Vs Gulam Kadar, .the petitioner had prayed for transfer of a motor accident claim from Jammu and Kashmir to Gujarat. The Court allowed the transfer petition in the absence of any objection on behalf of the respondents and their non-appearance even when in service. It is, however, submitted that there has to be a sound legal basis for such transfer, when the party wishes a transfer of a case from Gujarat to the State of Jammu and Kashmir, the acceptable course would be to file a petition for special leave under Article 136 against the order directing issue of summons, personal appearance, etc. Once the Court is seized of the matter under Article 136 of the Constitution, it would have power under Article 142 to direct transfer, in order to do complete justice.

In Kalpana Devi Prakash Thakar Vs Dev PrakashThakar, the Court disallowed the wife’s plea for transfer of the matrimonial proceedings from Mumbai. to Palanpur, Gujarat taking into account the following considerations:
The husband was a medical practitioner and his absence from Mumbai would cause inconvenience to his patients;
His old and ailing mother who. lived with him needed regular medical check-ups and constant care;
The witnesses were principally from Mumbai.
The wife had relatives in Mumbai with whom she could stay .whenever she went there-for the case;
The wife had relatives in Mumbai with whom she could stay .whenever she went there-for the case;
The husband was ready to bear the expenses of travel and also the traveling expenses of the escort.
Palanpur was well connected to Mumbai by train
In State of Assam vs Dr. Brojen Gogoi, the Supreme Court while setting aside an order of the Bombay High Court granting anticipatory bail on the ground that the State of Assam was not heard; directed transfer of the application for anticipatory bail to the Gauhati High Court on the ground that the alleged offences could have been committed only within the territorial jurisdiction of the Gauhati High Court and it was that High Court, which was the appropriate forum to deal with an application for anticipatory bail. This case is an authority for the proposition that the Court can act suo motu under Section 406 of CrPC, if it feels the interests of justice so require.”

In Ayyannar Agencies v.Sri Vishnu Cement Ltd, five complaints had been filed by the respondent under Section 138 of the Negotiable Instruments Act before the Court of the Metropolitan Magistrate at Chennai and thereafter one complaint was filed before the Metropolitan Magistrate at Hyderabad against the petitioners in respect of two cheques for the same offences under Section 138 of the Negotiable Instruments Act. Transfer was sought of the Hyderabad case to Chennai on the ground that parties in all cases were the same and the offence is of the same nature though pertaining to different cheques. The Court allowed the petition for transfer holding that the transfer prayed for could only be in the interests of justice and for the convenience of conducting the trial and disposal of all the cases.

In Abdul Madani v. State of Tamil Nadu, the Court disallowed the plea for transfer. The petitioners-prayed for transfer of the case pending against them in Tamil Nadu to Kerala alleging that the surcharged communal atmosphere in Tamil Nadu made the conduct of a fair trial impossible. The Court found as a matter of fact that a fair and speedy trial of the case was possible and the accused persons need not have any cause for apprehension. The court observed that the apprehension of not getting a fair and impartial trial is required to be reasonable and not imaginary. The Court observed that no universal or hard and fast rules can be prescribed for deciding the transfer petition, which always had to be decided on the basis of the facts of each case. The Court also observed that the convenience of the parties, including the witnesses to be produced at the trial was a relevant consideration, that convenience of the parties does not necessarily’ mean the convenience of the petitioner alone and that convenience for the purpose of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interests of the, society.

Conclusion

“Assurance of a fair trial is the first imperative of the dispensation of justice and therefore the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or simple handiness of legal services or like mine-grievances. something more substantial a lot of compelling, a lot of imperilling from the point of read of public justice and its attendant surroundings, is needy if the Court is to exercise its power of transfer; this is the cardinal principle though the circumstances may be myriad and vary from case to case, stated by Krishna Iyer In Maneka Sanjay Gandhi v. Miss Rani Jethmalani!

Supreme Court Procedure | Distinguish B/W Criminal & Civil Law Cases In Delhi, India

What is Civil Law and Criminal Law?
Civil Law:-

Civil law deals with the disputes between people, organizations, or between the 2, within which compensation is awarded to the victim.

Criminal Law:-

Criminal law is that the body of law that deals with crime and also the legal social control for criminal offences.

What is considered a civil case?

A civil case begins when a person or entity (such as a corporation or the government), called the plaintiff, claims that another person or entity (the defendant) has failed to carry out a legal duty owed to the plaintiff.

The civil law refers to almost all other disputes—these are the rules that apply when one person sues another person, a business or agency. This can cover a housing case such as for eviction or foreclosure, a family case such as divorce or custody, consumer problems such as debt or bankruptcy, or when someone sues for money because of damage to property or personal harm. All of these cases go to a Civil Court.

These are some of the most common types of cases to appear in civil court.

Contract Disputes. Contract disputes occur when one or more parties who signed a contract cannot or will not fulfil their obligations.
Property Disputes.
Class Action Cases.
Complaints Against the City.

What is said to be a criminal case?
Criminal laws are the rules that apply when someone commits a crime, such as assault, robbery, murder, arson, rape and other kinds of crimes. After a person is arrested and charged with a crime, that person goes to a Criminal Court. An accused in a criminal offence is harmful to the society as a whole.

A person accused of a crime is generally charged in a formal accusation called an indictment (for felonies or serious crimes) or information (for misdemeanours).

It is not the victim’s responsibility to bring a criminal case. In a kidnapping case, for instance, the government would prosecute the kidnapper; the victim would not be a party to the action.

When can a civil action become criminal?

One of the more challenging circumstances of civil practice is the development of a parallel criminal proceeding connected in some fashion to an ongoing civil matter. The complexity of the civil matter and the strategic choices necessary for its successful resolution grow exponentially with the overlay of criminal liability for a party or one of its principals. The spectre of a criminal record, incarceration, fines, assessments, restitution and other penalties such as debarment change–is in most circumstances irreversibly–how to proceed with the civil matter.

Why are civil cases being given the colour of criminal cases?

Expressing serious concern over a practice of conversion of civil cases into the criminal cases, a Bench of Justice H.K. Sema and Justice R.V. Raveendran said, “This is obviously on account of a prevalent impression that civil law remedies are time-consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to the irretrievable breakdown of marriages/families.

“Mr. Justice Raveendran, writing the judgment, said: “There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. The Supreme Court has deprecated the tendency, particularly in business circles, to convert purely civil disputes into criminal cases and the courts entertaining such matters for adjudication.

In the case of Madan Lal & ANR vs State Of Haryana it was seen that if the matter is clubbed together and is perused, then, it gives rise to a dispute of purely a civil nature. The question of the execution of sale deed or otherwise cannot be gone into by the police or the Criminal Court. Only the civil Court has the jurisdiction to decide such intricate questions. It is now well- the recognized principle of law that the matter, which essentially involves the dispute of civil nature cannot legally be allowed to become the subject matter of the criminal proceeding. It is not a matter of dispute that the jurisdiction of civil and criminal courts is entirely different and distinct from each other. The matter which squarely falls within the ambit and jurisdiction of the civil court cannot legally be permitted to be re-agitated in parallel proceedings in the criminal court. If the complainant is permitted to re-agitate the same very dispute in the garb of criminal prosecution, by way of impugned FIR, then, there will be no end of unwarranted litigation and it will inculcate and perpetuate injustice to the petitioners in this relevant direction. The complainant cannot possibly and legally be permitted to execute a non-existent civil court decree by putting pressure of a criminal prosecution against the petitioners-accused.

The division bench of Justice Ranjit More and Justice Shalini Phansalkar Joshi of the Bombay high court recently stated in its judgement that when the dispute is of civil nature, giving the proceedings a criminal colour is an abuse of the process of law in the case Ramesh Shah v. Tushaar Thakkar.

Bomanji Kavasji v. Mehernosh 1982 Bom. C.R. 503, wherein it was held that there is no justice at all to criminally proceed against the accused where the dispute is essential of civil nature and that a criminal action in such a case would be the abuse of criminal process … It was further observed that the exercise of inherent powers is necessary to prevent criminal courts being utilized as weapons of harassment for settling disputes of civil nature.

Can a Criminal as well as the Civil case be done in case of Cheque Return?
Both civil cases for recovery of cheque amount and criminal complaint about cheque dishonour are maintainable.

The civil case is for recovery of money and a criminal complaint is for punishment.
Bombay high court has held that both cases are maintainable.
The remedy for the cases where civil matters are turned into a criminal offence..!!
A positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 Cr.P.C. (to award compensation for accusation without reasonable cause) more frequently, where they discern malice or frivolous or ulterior motives on the part of the complainant.”

The apex court was dealing with an appeal preferred by Indian Oil Corporation against a judgment of the Madras High Court quashing criminal proceedings initiated against NEPC India Ltd and others for breach of contractual obligations. ( Indian Oil Corporation Ltd. vs Nepc India Ltd.)

The High Court had held in one of its cases that mere breach of contractual terms would not amount to cheating unless the fraudulent or dishonest intention was shown right at the beginning of the transaction.

Also, check out our previous post on –Procedures, Grounds & Judgements to Transfer Case in India